Bennett By and Through Bennett v. Hospital Corp. of America

• Decision Date: 14 August 1990
• Docket Number: No. 89-35059,89-35059
• Citation: 912 F.2d 468
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Jennifer Marie BENNETT, a minor, by and through Wayne Bennett and Becky Bennett, her parents and guardians ad litem; Wayne Bennett, Becky Bennett, husband and wife, individually, Plaintiffs-Appellants. v. HOSPITAL CORPORATION OF AMERICA, a Tennessee Corporation, et al., Defendant, and Caldwell Women's Clinic, a corporation partnership or other unincorporated business venture; Robert J. Ring, M.D.; Karen Cornwell, M.D., individually and dba/Caldwell Women's Clinic, a partnership or unincorporated association; Linda Schaffer, M.D., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 468

912 F.2d 468 Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Jennifer Marie BENNETT, a minor, by and through Wayne
Bennett and Becky Bennett, her parents and guardians ad
litem; Wayne Bennett, Becky Bennett, husband and wife,
individually, Plaintiffs-Appellants.
v.
HOSPITAL CORPORATION OF AMERICA, a Tennessee Corporation, et
al., Defendant,
and
Caldwell Women's Clinic, a corporation partnership or other
unincorporated business venture; Robert J. Ring, M.D.;
Karen Cornwell, M.D., individually and dba/Caldwell Women's
Clinic, a partnership or unincorporated association; Linda
Schaffer, M.D., Defendants-Appellees. No. 89-35059. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1990.
Decided Aug. 14, 1990.

Before JAMES R. BROWNING, ALARCON and RYMER, Circuit Judges.

ORDER

The memorandum disposition filed August 1, 1990 is withdrawn The attached memorandum disposition shall be filed in its place.

Before JAMES R. BROWNING, ALARCON and RYMER, Circuit Judges.

MEMORANDUM ^*

Jennifer Marie Bennett, a minor, by and through Wayne Bennett and Becky Bennett, her parents and guardians ad litem, (hereinafter Appellant) and Wayne Bennett and Becky Bennett, as individuals, appeal the denial of Appellant's motions for a new trial and the final judgment entered in this malpractice action. ¹

Appellant raises the following issues on appeal:

1. The district court committed prejudicial error in admitting evidence regarding the purchase price of annuities;

2. The damage award was unconscionably low;

3. The district court committed prejudicial error in excluding evidence relating to Dr. Schaffer's liability;

a. The district court committed prejudicial error in excluding Dr. Parer's testimony relating to the cause of Bennett's injuries;

b. The district court committed prejudicial error in sustaining objections to hypothetical questions asked of Dr. Emerson;

c. The district court committed prejudicial error in refusing to allow Appellant to impeach Dr. Emerson with his prior inconsistent statements;

d. The district court committed prejudicial error in excluding Dr. Westcott's testimony on rebuttal.

We discuss each of these contentions and the facts pertinent thereto under separate headings. We affirm.

I THE ANNUITY EVIDENCE

Appellant argues that the trial court erred in admitting testimony concerning the purchase price of annuities that could be used to compensate Appellant for her injuries. Appellant made a motion in limine to exclude the annuity evidence pursuant to Rules 402 and 403 of the Federal Rules of Evidence on the basis that the evidence was "irrelevant," or that its relevance was "outweighed by its prejudicial effect and, that it was likely to mislead the jury." At trial, Appellant also raised a continuing objection to evidence concerning annuities on the ground that it was "irrelevant to the inquiry here." The district court denied each of Appellant's objections.

In a diversity action for damages for tortious conduct the law of the forum state is applied to ascertain the correct measures of damages. Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1316 n. 10 (9th Cir.1977); V.L. Johnson v. Chicago, Mil., St. P. & Pac. R.R. Co., 400 F.2d 968, 974 (9th Cir.1968). Although state law determines the measure of damages, we apply the Federal Rules of Evidence to questions concerning the admissibility of evidence. Gibbs v. State Farm Mut. Ins. Co., 544 F.2d 423, 428 n. 2 (9th Cir.1976). "The admission or exclusion of evidence under Fed.R.Evid. 403 ... is reversible only for a clear abuse of discretion." Coursen v. A.H. Robbins Co., 764 F.2d 1329, 1333 (9th Cir.1985).

Under Idaho law lump sum damages must be reduced to present value. See W.L. Scott, Inc. v. Madras Aerotec, Inc., 103 Idaho 736, 653 P.2d 791, 797 (1982). Idaho Jury Instruction 931 was read to the jury. Instruction 931 defines present value as "the sum of money which, when invested so as to add to it a reasonable rate of return, will pay the future damages at the time and in the amounts" in which the jury finds they occurred. Given this definition, the jury was entitled to consider a variety of investment options, including annuities. This court has itself explicitly upheld the use of annuity testimony for the determination of the present value of a damage award. Scott v. United States, 884 F.2d 1280, 1288 (9th Cir.1989). The district court did not abuse its discretion in admitting evidence of the purchase price of annuities.

Although annuity evidence is admissible as evidence of present value, it is still necessary to address some of Appellant's specific complaints about the annuity testimony presented in this case. First, Appellant argues that the annuity calculations improperly took into account Appellant's shortened lifespan. Second, Appellant asserts that, because the $568,609 "sample" annuity was unrelated to any care plan developed by any of the...